Citation Nr: 0117021
Decision Date: 06/25/01 Archive Date: 07/03/01
DOCKET NO. 96-10 973 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to compensation under the provisions of
38 U.S.C.A. § 1151 for impotence and urinary dribbling as a
result of medical treatment by the Department of Veterans
Affairs in May 1992.
REPRESENTATION
Appellant represented by: Kathy A. Lieberman, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from February 1976 to May
1978.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in October 1995 by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri.
By a decision dated August 5, 1999, the Board denied the
veteran's claim. The veteran appealed the Board's decision
to the United States Court of Appeals for Veterans Claims
(Court), which, in June 2000, upon a joint motion by the
veteran-appellant and the Secretary of Veterans Affairs,
vacated the Board's decision of August 5, 1999, and remanded
the matter to the Board for further development of the
evidence.
REMAND
Title 38, United States Code § 1151 provides that, where a
veteran suffers an injury or an aggravation of an injury
resulting in additional disability by reason of VA
hospitalization, or medical or surgical treatment,
compensation shall be awarded in the same manner as if such
disability were service connected.
Amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204
require a showing not only that the VA treatment in question
resulted in additional disability but also that the proximate
cause of the additional disability was carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault on VA's part in furnishing the
medical or surgical treatment, or that the proximate cause of
additional disability was an event which was not reasonably
foreseeable. However, those amendments apply only to claims
for compensation under 38 U.S.C.A. § 1151 which were filed on
or after October 1, 1997. VAOPGCPREC 40-97, 63 Fed. Reg.
31263 (1998). Therefore, as the veteran filed his claim
prior to October 1, 1997, the only issue before the Board is
whether he developed impotence and urinary dribbling as a
result of taking medication prescribed by a VA physician in
May 1992.
The veteran contends that medication which he received from
VA in May 1992 and which he took for 5 days as treatment for
hypertension immediately resulted in erectile dysfunction
(impotence) and later resulted in urinary dribbling.
The record reflects that the veteran was treated for
hypertension through non-VA sources beginning in January
1991, when Maxide was prescribed. Later in the same
month, Lisinopril, 5 milligrams daily, was prescribed and he
was continued on Lisinopril until June 1991. During the
period he was maintained on Lisinopril, no complaints or
findings involving impotency or urinary dribbling were shown.
In June 1991, Lisinopril was discontinued due to the presence
of a cough; he was then placed on Calan SR, 240 milligrams,
once daily, and continued thereon until at least February
1992.
The veteran was seen at the VA Medical Center in Kansas City,
Missouri, on an outpatient basis on May 22, 1992, for a
variety of complaints, and during the course of the ensuing
physical examination it was noticed that the veteran's blood
pressure was elevated. At that time, he reported having
previously been treated for hypertension with Lisinopril, but
that he had been without his anti-hypertensive medication for
a period of months. Lisinopril, 10 milligrams daily, was
prescribed.
The veteran reports that he remained on Lisinopril for a
five-day period, and that near the close of that period, he
had burning on urination and with ejaculation, followed by
impotence. The record reflects that following the May 22nd
appointment, he was not thereafter seen until June 9, 1992,
when the veteran reported that he had experienced impotence
since beginning Lisinopril on May 22, 1992. The diagnosis
was of hypertension--impotence on Lisinopril. Lisinopril was
discontinued and Verapamil SR, 240 milligrams daily, (the
generic equivalent of Calan SR) was prescribed. All anti-
hypertensive medication was later stopped for a two-week
period, beginning in June 1992, but with a reported
continuation of the impotency. In July 1992, no improvement
in the veteran's complaints of impotency was reported;
clinical impressions of hypertension--fair control, and
impotence--doubt medication effect, were offered.
The veteran was thereafter referred to the VA Urology Clinic,
where examination in August 1992 led to an assessment of
erectile dysfunction. On the occasion of a psychological
evaluation in August 1992, the veteran reported total
impotence and some incontinence after urination. The veteran
attributed the noted complaints to his start of anti-
hypertensive medication in May 1992. Also noted was the
veteran's
statement that an unnamed physician had told him that
Lisinopril caused impotence. In the opinion of the examiner,
there appeared to be some level of anxiety and somatization
as to the current episodes.
The veteran is not shown to have been seen thereafter until
January 1993, when his only pertinent complaint was of
continued impotence. The assessments were of hypertension--
poor control due to noncompliance and of impotence--doubt
medication, question of microvascular disease. Later In
January 1993, it was noted by a medical professional that the
veteran's lack of erections was probably organic versus
psychological. Various treatment modalities were thereafter
attempted for management of the veteran's sexual dysfunction.
When seen in May 1993, he reported no erections whatsoever
and testosterone shots were then begun and continued over the
ensuing months. In October 1993, the veteran complained of
urinary dribbling, in addition to a decrease in the strength
and caliber of his urinary stream. The assessments were of a
bilateral inguinal hernia and a tender prostate with bladder
outlet obstruction symptoms. In December 1993, the veteran's
terminal dribbling of urine was found by a treating physician
not to be related to any obstructive problems, such as benign
prostatic hypertrophy. Further complaints of urinary
dribbling were set forth in July 1994.
When seen by the VA psychology service in August 1994, the
veteran reported having some spontaneous erections which did
not last. An assessment by a resident physician in the
Mental Health Clinic in September 1994, based on the
veteran's history, was of an adjustment disorder secondary to
impotence, secondary to anti-hypertensives. Another resident
in March 1995 offered diagnoses of major depression, mild,
single episode, in full remission; and "impotence"
secondary to "antihypertensive medication ?" At that time,
it was noted that androgen therapy had permitted the veteran
to succeed in sexual intercourse with his spouse. In April
1995, the veteran reported not having sexual dysfunction
anymore. In May 1995, complaints of impotence were renewed.
The veteran was afforded a hearing before the RO's hearing
officer in February 1996, and still another hearing as to the
same issue before the Board in Washington, D. C., in October
1997. At those times, the veteran advanced his primary
contention that use of Lisinopril, beginning on May 22, 1992,
led to impotency and a urinary disorder involving urinary
dribbling.
In December 1997, the Board remanded this case to the RO to
obtain the opinion of a specialist in urology on the issue of
the medical likelihood that taking Lisinopril, a medication
the veteran had taken before without side-effects, for 5 days
in May 1992, caused him to develop chronic impotence and a
disorder manifested by urinary dribbling. While this case
was in remand status, the veteran continued to be seen at a
VA mental health clinic, where, in April 1997, he stated that
his primary problem was premature ejaculation, not impotence.
The veteran was examined by a specialist in urology in March
1998. A genitourinary examination was essentially
unremarkable. The diagnoses were: impotence; depression; and
mild decreased bladder tone due to medication resulting in
some occasional dribbling, with a few drops of urine. The
examiner commented that the veteran's impotence was based on
a combination of medication and depression, and that he had a
mild hypotonic bladder secondary to medications for
hypertension and impotence.
In October 1998, the specialist in urology, who had reviewed
the veteran's medical records, offered his opinion that:
short-term use of Lisinopril does not cause impotence or
urinary dribbling; in the veteran's case, using Lisinopril in
May 1992 for 5 days did not cause the side-effects which the
veteran was complaining about; it was not at least as likely
as not that Lisinopril was the cause of the veteran's
symptoms; and medications which the veteran was currently
taking might have the side-effects of impotence and urinary
dribbling.
The parties to the joint motion to remand this case from the
Court to the Board stated that the Board should consider
obtaining a medical opinion from a specialist in
endocrinology, and the Board will remand this case to the RO
for that purpose.
Accordingly, this case is remanded to the RO for the
following:
1. The RO should request that the
veteran identify all physicians and
medical facilities, VA or non-VA,
which have treated him for impotence
and/or urinary dribbling since October
1998. After securing any necessary
releases from the veteran, the RO
should attempt to obtain copies of all
such clinical records. In the event
that any records identified by the
veteran are not obtained, the RO
should comply with the notice
provisions of the Veterans Claims
Assistance Act of 2000 (VCAA).
2. The RO should then arrange for the
veteran to be examined by a specialist
in endocrinology. It is imperative
that the examiner review the pertinent
medical records in the claims file and
a separate copy of this REMAND. The
examiner should determine whether the
veteran currently suffers from chronic
impotence and urinary dribbling. The
examiner should offer an opinion on
the question of whether it is at least
as likely as not (a 50 percent or more
likelihood) that VA-prescribed
Lisinopril, which the veteran took for
approximately 5 days in May 1992,
resulted in current chronic impotence
and urinary dribbling, if found. A
rationale for the opinion expressed
should be provided.
3. Upon receipt of the report of
examination and opinion, the RO should
ensure that the question posed above
to the examiner has been answered in
full. If not, the report should be
returned to the examiner for
completion. Then, after any
additional development required by the
VCAA, the RO should review the
evidence and readjudicate the
veteran's claim. If the decision
remains adverse to the veteran, he and
his representative should be provided
with an appropriate Supplemental
Statement of the Case and an
opportunity to respond thereto. The
case should then be returned to the
Board for further appellate
consideration, if otherwise in order.
The purposes of this REMAND are to assist the veteran and to
obtain clarifying medical information. By this REMAND, the
Board intimates no opinion as to the ultimate disposition of
the appeal. No action is required of the veteran until he
receives further notice. The appellant has the right to
submit additional evidence and argument on the matter the
Board has remanded to the RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
BRUCE KANNEE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).